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Clark v. Cuomo

63 N.Y.2d 96 Court N.Y. Decision date 1984-09-13 English

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George L. Clark, Jr., Individually and as Chairman of the New York Republican State Committee, Appellant, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
Argued September 12, 1984;
decided September 13, 1984
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POINTS OF COUNSEL
Thomas J. Spargo for appellant.
I. It is not within the power and authority of the Governor to create a voter registration task force and to implement a voter registration program in State offices by way of executive order. (Rapp v Carey, 44 NY2d 157 .) II. The function of voter registration must be carried out by a bipartisan board or commission. (Rapp v Carey, 44 NY2d 157 .)
Robert Abrams, Attorney-General {Robert Hermann, Peter H. Schiff, Richard Rifkin and John Q. Driscoll of counsel), for respondents.
I. The preliminary injunction should not have been issued as the voter registration project does not violate the concept of bipartisan administration or the registration and election process. (Picotte Realty v Gallery of Homes, 66 AD2d 978 ; Matter of Armitage v Carey, 49 AD2d 496 ; Matter of Adams u Flanagan, 201 App Div 735 , 234 NY 540 .) II. Executive Order No. 43 is not a legislative act, and is within the authority of the Governor as chief executive of the State. (O'Brien v City of Saratoga Springs, 224 App Div 124 ; Matter of Di Brizzi [Proskauer], 303 NY 206 ; Gautier v Ditmar, 204 NY 20 ; Matter of New York State Employees Council 50 v Rockefeller, 55 Misc 2d 250 ; Rapp v Carey, 44 NY2d 157 .) III. Respondent has failed to demonstrate irreparable injury to himself or any other class or person. (De Pina v De Pina, 31 AD2d 744 .)
Arthur Eisenberg, Julius Chambers, Joel Berger and Lani Guinier for the League of Women Voters of New York State and others, amici curiae.
I. Executive Order No. 43 does not violate the bipartisan registration requirements of section 8 of article II of the New York Constitution. (Matter of Celler v Larkin, 71 Misc 2d 17 ; Matter of Adams v Flanagan, 201 App Div 735 , 234 NY 540 .) II. Executive Order No. 43 does not contravene the voter registration plan enacted by the New York Legislature; indeed, the
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executive order furthers both State and Federal legislative policy. (Matter of Siwek v Mahoney, 39 NY2d 159 ; Red Lion Broadcasting Co. v FCC, 395 US 367 ; United States v Mine Workers, 330 US 258 ; Fogarty v United States, 340 US 8 .) III. Plaintiff has made no showing of irreparable injury and no showing that the balance of equities tip decidedly in plaintiff’s favor. (Margolies v Encounter, Inc., 45 AD2d 833 ; City of Yonkers v Dyl & Dyl Dev. Corp., 67 Misc 2d 704 .)

OPINION OF THE COURT

Inasmuch as on this record there is a failure of proof of irreparable injury to plaintiff, the Appellate Division did not commit error as a matter of law when it denied plaintiff’s application for a preliminary injunction.

This action was instituted for injunctive and declaratory relief, challenging the “State Program for Voter Registration” promulgated in the Governor’s Executive Order No. 43, dated July 9, 1984. In expedited proceedings, Special Term issued a preliminary injunction enjoining defendants from implementing the program; on appeal the Appellate Division reversed and denied plaintiff’s motion for such relief. That court thereupon granted plaintiff permission to appeal to our court on the certified question, “Did this court err as a matter of law in revérsing the order of Special Term and denying plaintiff’s motion for a preliminary injunction?”

As noted by the Appellate Division, one of the prerequisites for the issuance of a preliminary injunction is a showing of irreparable injury to the applicant if that relief is not granted. Even if we assume that any injury to plaintiff would be irreparable in the time-frame and circumstances of this case, on the record before us there is a failure of proof to show any such injury. Of course, the implementation of an informational and promotional program by the agencies of government which would lead to the voluntary registration of additional voters would not of itself result in injury to plaintiff. Legally cognizable injury might occur, however, if the implementation of the program were to be affected by discrimination, for example, as

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to geography, demographics or directly as to party enrollment, but there is before us no tender of proof as to any such discrimination nor does plaintiff assert any such claim. Although employment of duress or other improper method would also constitute such injury, again, no proof is tendered to support any such claim.

Nor, in support of his claim of irreparable injury, has plaintiff demonstrated on the present submission in support of his application for a preliminary injunction that the “Program for Voter Registraton” at issue here is more than a program to encourage registration or that it comes within the ambit of section 8 of article II of the Constitution or of section 5-210 (subd 6, par [a]) of the Election Law. Plaintiff cannot, therefore, advance theories of injury stemming from alleged denial of bipartisan participation under either of these provisions (see paragraphs 30 to 37 of his verified complaint) to sustain his entitlement to a preliminary injunction against this program.

Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order affirmed, etc.

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